DECISION TIME TMichigan Daily - Tuesday, December 3, 2002-3
Court will examine precedent,
new issues in coming decision
By Megan Hayes
and Jordan Schrader
Daily Staff Reporters
The Supreme Court's decision to hear
arguments in the lawsuits challenging the
University's admissions policies marks the
first time in nearly 25 years it will revisit
the use of race in college admissions.
In 1978, the Supreme Court ruled in
Regents of the University of California v.
Bakke that race could be used as one of
several factors when evaluating appli-
cants, while it denied the use of racial
In his majority opinion, Justice Lewis
Powell specifically found creating a
diverse educational environment to be a
compelling state interest and ruled that
subsequent policies must be narrowly tai-
lored to meet this interest.
University Assistant General Counsel
Jonathan Alger said the Court will examine
two factors in making its decision - the edu-
cational benefits diversity has provided at the
University and the degree to which policies
have been carefully developed in accordance
with the Bakke decision.
"Our policies have been narrowly craft-
ed to comply with Supreme Court prece-
dent," he said.
The Court's decision could determine
the degree of discretion universitiesthave
in crafting admissions policies with the
goal of diversity in mind, Duke University
Law Prof. Jerome Culp said.
"It puts into play the whole question of
what voluntary actions universities can
take," he said.
Wayne State University law Prof.
Robert Sedler said while none of the liti-
gants are opposed to diversity, the conflict
centers on how a diverse campus can
legally and effectively be achieved.
"It's a question of whether the Universi-
ty can use race to achieve racial diversity
or whether it has to use factors that corre-
late with race," he said.
For instance, laws in Texas and other
states require public universities to accept
the top 10 percent of all high school class-
es in their states in order to enroll students
from many different backgrounds.
While University lawyers will appeal to
the Court's desire to follow precedent, the
intervenors in the lawsuits will argue that
the problem to be addressed goes beyond
"It's a question of
whether the university
can use race to
achieve racial diversity
or whether it has to
use factors that
correlate with race."
- Robert Sedler
Wayne State University law professor
Miranda Massie, lead attorney for inter-
venors in the Law School case, said reme-
dying the effects of past and present racial
discrimination is an equally compelling
"We're the only party that's been prepared
to expose the multitude of ways in which
racism shapes and distorts every aspect of the
educational experience, including admissions
criteria," Massie said.
Barbara Grutter, a 46-year-old working mother, was denied admission to the Law School in 1996 and is
the plaintiff in the case against the University's Law School admissions policies.
Past cases clarify controversy
surrounding admissions suits
with Court's decision
Re ents feel University policies
Wwwithstand legal callenge
By Shabina S. Khatdi
Daily Staff Reporter
From Plessy v. Ferguson to the Regents of the University of Cali-
fornia v. Bakke, the Supreme Court has reshaped the nation's poli-
cies on diversity in higher education. The High Court will once
again assess the precedents it has set when it hears arguments next
spring in two cases challenging the University of Michigan's race-
conscious admissions policies.
The Court's ruling in 1896 in the case Plessy set a precedent that
would be followed for more than 60 years.
The case concerned a black man named Homer Plessy, who
was jailed in 1892 for refusing to move from a car designated
for whites in a train on the East Louisiana Railroad. Plessy sued
the state of Louisiana, charging the policy of separate cars vio-
lated the 13th and 14th Amendments. But the judge in the case,
John Howard Ferguson, ruled against Plessy.
The Supreme Court heard the case and upheld the previous decision.
In an 8-1 decision, the Court ruled that separate facilities for blacks and
whites were constitutional as long as they were equal.
But when the Court revisited the issue 60 years later in Brown v.
Board of Education, it struck down the "separate but equal" doctrine, a
decisionthat integrated schools throughout the country.
Linda Brown was a black girl who was denied entrance to a
white elementary school in Topeka, Kansas. Future Supreme
Court Justice Thurgood Marshall argued the case before the
high court in 1952. It took the Court two years to come to a
decision, but it finally issued a unanimous decision declaring
separate but equal policies violated the 14th Amendment, which
guarantees equal protection of the law all U.S. citizens.
The Supreme Court next addressed the issue of race and edu-
cation in 1978, when a sharply divided court issued three sepa-
rate opinions in Bakke.
Allan Bakke alleged he was denied admission to the Univer-
sity of California at Davis Medical School because he was
white. Prior to the Bakke ruling, the school reserved 16 out of
100 openings in its mfedical school for minority applicants, who
were chosen from a separate pool of candidates.
Four of the nine Supreme Court justices ruled the use of any racial
quota was impermissible, while four of the five remaining justices held
that race could be used as a factor in admissions to remedy past discrim-
ination in very specific situations.
Justice Lewis Powell cast the tie-breaking vote for both opinions,
forcihg the University of California at Davis to admit Bakke but declar-
ing race a valid consideration in admissions. But he also wrote that race
could be taken into account as one of many factors to achieve diversity.
While the cloudy decision reached in Bakke resolved the issue for
nearly two decades, but the battle over diversity in higher education was
reignited in 1996 when the Center for Individual Rights filed the first of
three lawsuits challenging the admissions policies in three universities
across the country. The University of Michigan was one of them.
The Supreme Court refused to hear cases concerning the univer-
sities of Texas and Washington, which resulted in opposing deci-
sions at the circuit court level. The two cases against the University
of Michigan are the only ones concerning race and higher education
still in the legal pipeline.
In October 1997, Jennifer Gratz and Patrick Hamacher, two white
applicants who were denied admission to the University of Michigan,
filed a lawsuit against the University on the grounds that its undergradu-
ate admissions policies discriminated against white applicants.
Barbara Grutter filed a similar lawsuit against the University's
Law School in December 1997 after being denied admission to the
In February 1998 a third party, the intervenors, entered the picture,
filing a motion to be included in the cases. The interveners included the
groups the National Association for the Advancement of Colored People
Legal Defense and Educational Fund and the American Civil Liberties
The intervenors said they support the use of race in admissions as a
Since December 1997 the Law School has been the focus of a lawsuit
involving the school's race-based admission policies.
means to remedy past discrimination, while the University supports
race-conscious admission policies as a way to create a diverse learning
In August 1999, the 6th Circuit Court of Appeals allowed the inter-
vention in both cases.
In December 2000, U.S. District Court Judge Patrick Duggan issued
his opinion, saying diversity is a "compelling governmental interest and
that the University's current undergraduate admissions program meets
the standards set by the Supreme Court in Regents of the University of
California v. Bakke."
But he also declared a grid system the University had employed
to evaluate applicants to be unconstitutional. The University had
reformed its policies, and Duggan ruled the new system was per-
missible. Duggan dismissed the intervenors' claim that the Univer-
sity was justified in using race as a factor in admissions to remedy
the effects of past discrimination.
In March 2001, District Judge Bernard Friedman ruled against the
University and also denied the intervenors' claims, stating in his opinion
that the law does not permit colleges and universities to use race in
Though Friedman issued an injunction baring the Law School from
using race as a factor in admissions, the 6th Circuit issued a stay of the
injunction, allowing the Law School to continue its policy.
Both cases were appealed to the 6th Circuit, and the appeals
court heard arguments in both cases in back-to-back hearings in
December 2001. The court issued its decision in Grutter v.
Bollinger in May, ruling in favor of the University and reversing
Judge Friedman's previous decision that declared the Universi-
ty's use of race in admissions unconstitutional.
The appeals court has not issued a decision in Gratz v. Bollinger
CIR appealed the 6th Circuit's decision to the Supreme Court,
which accepted both the undergraduate and Law School cases yes-
By Emily Kraack
and Tomislav Ladika
Daily Staff Reporters
An impending Supreme Court hearing
could result in a ruling impacting the way
colleges and universities across the country
look at applicants. Univer-
sity of Michigan adminis-
trators yesterday said they
were looking forward to a
decision that will clarify
the role of race in college
"This is an issue of
national importance," inter-
im LSA Dean Terrence
McDonald said. "I'm
delighted that the Supreme McDonald
Court is going to decide this issue."
Regent-elect Andrew Richner (R-Grosse
Pointe Park) had a different reason for sup-
porting the Supreme Court's decision. He
said he was glad the Supreme Court will hear
the cases because he felt
Regents of the University
of California v. Bakke, the
Supreme Court precedentn
used in cases regarding k
"I think the issue is ripe for
consideration," Richner said.
"The Bakke decision is a
murky decision that begs
for some sort of clarifica-
tion on what the Court meant."
He added that disagreement among lower
court rulings, something he hopes will
change after the Supreme Court rules.
"You've got the 5th Circuit in the Hopwood v.
University of Texas ruling striking down -the
University of Texas and then you have the 6th
(Circuit) Court of Appeals upholding the Uni-
versity of Michigan's admissions process. The
courts are all over the map on this." he said.
Law School Dean Jeffrey Lehman disagreed
with Richner. "I think Bakke is pretty clear," he
said. "One of the lessons from Bakke is that lawful
forms of affirmative action are tailored to the con-
texts where they are being used."
Lehman also said he thought the Law School
admissions policies would be upheld by the
"I am confident that the Court will recog-
nize both the lawfulness and the importance
of our admissions policies," he said.
Regent Olivia Maynard (D-Goodrich)
expressed support for current admissions
policies and said she is glad the University is
leading, the fight for race-conscious admis-
"I think the program we've been following:
is the correct one," she said.
She also noted the historical importance of
the decision. "This (will) be the first time in,
25 years that the United States Supreme
Court has visited this issue."
Not everyone supports the University's use:
of race as a factor in its admissions policies.
While philosophy Prof. Carl Cohen said their,
motives are good, he openly called the poli-
"I was pleased because I think it's important:
that these principles be clarified," he said. "It is a:
racially discriminatory system that we employ.:
Racial discrimination has always been a morally
McDonald talked about the importance of
the University's.admissions-process4 saying,
the college level is the only level of public"
education that doesn't have to draw its stu-
dent body from a specific geographical area.
He said this allowed the University to actively,
build a diverse student body.
McDonald also said he felt a Supreme
Court ruling would lend legitimacy to admis-
sions procedures used by the University.
"Validating our admissions policy will be
recognizing the reality that higher education
in America is the most important level of
education for building a diverse society,"
"I think that the Supreme Court will pro-
vide a validation of the Bakke decision," he
added. A decision in favor of the University
would allow it to continue its admissions pro-,
cedures. But McDonald declined to speculate
on what decision the Court would render after
hearing the case.
Senior Vice Provost for Academic Affairs
Lester Monts was more willing to predict the
outcome of the cases, which will probably
come down in early summer.
"We're pretty confident that the Supreme
Court will rule in our favor," Monts said.
"I think that we have a superb set of
lawyers representing the University. I think
our evidence is strong, and I think that (we)
will be able to mount a convincing case."
But Cohen said five of the nine Court justices
clearly support the plaintiffs' case, and several other
justices may also rule against the University.
"The likelihood of the University finding
five votes on the board to support its racially
discriminatory program is very low," he said.
In the end, the only thing all administrators
can say is that the University must wait for
the decision from the Court.
"Whether it's good or bad for the Universi-
ty, I think we. have to wait for the decision,"
- Daily Staff Reporters Jeremy Berkowitz
and Megan Hayes contributed to this article.
Past and present Universityfresidents
o timistic about outcome o awsits
Continued from Page 1
"Society needs clarification on this so we can recommit
ourselves to integration," Bollinger said. "From a broader
perspective, I think it's very important that the Court speak
on this issue."
would suffer greatly," he said. "It would also chart a
new course away from the enormously important deci-
sion in Brown."
While University officials were opposed to a decision by
the Court to review the cases, they maintained that if the
Court were to hear an appeal in one case against the Univer-
sity, it should take them both.